A federal court in Colorado has tossed one of the two claims in a discrimination lawsuit against Jack Phillips, the baker who was punished for refusing to make a wedding cake for a same-sex couple.
The complaint by Denver attorney Autumn Scardina, a man identifying as a woman, was filed in 2019, one year after Phillips won a 7-2 decision in the U.S. Supreme Court in the case by the same-sex couple. The high court issued a narrow ruling that determined Colorado’s Civil Rights Commission expressed unconstitutional “hostility” toward religion in response to Phillip’s conscience-based defense for his actions.
Scardina demanded that the owner of Masterpiece Cakeshop produce a cake “depicting satanic themes and images.” After Phillips refused the request, Scardina asked for a blue and pink cake to represent his “sex change.”
Kristen Waggoner of the Alliance Defending Freedom, which is representing Phillips, called judge’s decision Thursday “the first step towards final justice.”
“Jack has been threatened with financial ruin simply because he makes decisions about which messages to create and celebrate — decisions that every other artist in Colorado is free to make,” he said. “Tolerance for different opinions is essential. We look forward to defending Jack — and ultimately prevailing — on the remaining claim.”
Previously, ADF called the case “nothing more than an activist’s attempt to harass and ruin Jack because he won’t create custom cakes that express messages or celebrate events in conflict with his conscience.”
Scardina’s suit alleges Phillips violated the state’s law protecting consumers from deceptive advertising as well as the Colorado Anti-Discrimination Act.
District Judge A. Bruce Jones dismissed the deceptive advertising claim on Thursday. He pointed out that the “statements” cited by Scardina were not advertisements. Instead, they were “news articles or op-eds predominantly concerning Phillips’ refusal to make a wedding cake for a same-sex couple, which resulted in the case that ultimately went to the Supreme Court.”
The statements, the judge found, “are not commercial speech, and thus cannot be classified as advertisements.”
“If defendants were engaged in such a stealth advertising campaign, they successfully disguised it within their speech on a matter of public concern,” he said.
The judge declined to dismiss the second claim, alleging a violation of the state’s anti-discrimination laws.
Phillips argues he would not make a cake celebrating transgenderism for anyone, so there was no discrimination involved. The judge noted Phillips’ had made the same statement in the original case, and it was rejected by the court of appeals.
James Dobson, the noted Christian psychologist, agreed with the Supreme Court that Colorado’s Civil Rights Commission is biased and exhibits hostility to people of faith.
“We call upon the Colorado legislature to provide unbiased, fair, constitutional due process for all Coloradoans, including people of faith, and to prevent future hostility by this biased government agency,” he said in August 2018.
It was Diann Rice, then a member of the state commission, who expressed hostility against Christian faith.
“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination,” she said. “And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.”
When Scardina filed the case in 2018, the late talk-radio host Rush Limbaugh commented.
“The latest lawsuit against Jack Phillips is – I’m not making this up, now. The latest lawsuit against Jack Phillips, the owner of the Masterpiece Cakeshop, is filed by a guy who harassed the bakery for months, requesting things like a cake with a picture of Satan performing fellatio,” he said. “The guy walks in, requested that Jack Phillips bake a cake with a picture of Satan performing fellatio. Of course, Jack Phillips said ‘no.’
“This discrimination suit’s utterly baseless,” he said. “Any person with two functioning brain cells can see.”
Phillips’ position throughout has been that he will sell a cake to anyone, but he cannot be forced to create messages with which he disagrees. Previous court rulings have affirmed protection from “compelled speech.”
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